Edgardo Rotman is Foreign and International Law
Librarian and Senior Lecturer in International & Comparative Law at the
University Of Miami School Of Law.

He
holds an LL.B (in law, 1959) from the National
University of Buenos Aires,
LL.M.(in
criminology, 1975) from theNational University of Buenos Aires, and Ph.D. (in law and social
sciences, 1973) from the University of Buenos Aires. He also earned a J.D. at
Suffolk University School of Law in 1989. He has practiced law both in
Argentina and in Massachusetts, where he served as a staff attorney at
Massachusetts Correctional Legal Services. He has been a Professor of Law at
the University of Buenos Aires and at the University of El Salvador (in Buenos
Aires), as well as a visiting Professor of Law at Boston University, a research
fellow at the Max-Planck Institute for Criminal Law in Germany, and a visiting
scholar in comparative criminal law at Harvard Law School. He was appointed to
represent the United States at the International Penal and Penitentiary
Foundation, where he has been a voting member of the Council since 1996.
Professor Rotman is the author of four books and numerous articles published in
leading American, European and Latin-American journals on international and
comparative criminal law, legal translation, and other subjects. He teaches
research methods in international, foreign and comparative law; international
moot court; and comparative criminal law (in English and Spanish).

I. Background

On March 26th, 1991
Argentina, Brazil, Uruguay and Paraguay signed the Treaty of Asunción,
establishing “Mercosur,” an acronym for Mercado Comun del Sur (Art. 1) that
took effect on December 31, 1994. The purpose of the agreement was to set up a
common market and eliminate trade barriers among the signatory parties.

There are many precedents to
Mercosur. The first one was the creation of the unsuccessful Latin American
Free Trade Association (LAFTA) in 1960. In 1980, the Treaty of Montevideo[2]
replaced LAFTA with the Latin American Integration Association (ALADI). This
new integration initiative was based on a series of bilateral treaties within a
flexible framework of multilateral tariff preferences, with no more success
than its predecessor. Argentina and Brazil decided to approach a mutual
integration process by means of a series of sectoral protocols, subsequent to
the 1986 “Declaration of Buenos Aires,” followed by the 1988 Agreement on
Argentine-Brazilian Integration,[3] which was joined by Uruguay and
Paraguay.[4]

Chile and Bolivia became associate
members of Mercosur in 1996 and Peru in 2003. Mexico started talks over a
bilateral agreement on tariffs reduction with Argentina and aims at becoming
the fourth associate member of Mercosur.[5] Also, Venezuela and Colombia are
involved in conversations towards a possible associate membership. In
connection to these initiatives, Mercosur and the Andean Community initiated
negotiationson the formation of a
preferential trade area in 1995. The establishment of a comprehensive
preferential trade area between these two customs unions could potentially be a
major stepping-stone for the creation of a South American Free Trade Agreement.
The result has been negotiations to achieve this objective through automatic
tariff reductions and a maximum tariff reduction schedule of 15 years for the
most sensitive products. Brazil’s strategic target is to establish a South
American Free Trade Area that could be instrumental in the negotiations with
the United States on the Free Trade Areas of the Americas. After eight years
of negotiations, the Mercosur trade bloc has reached a free trade deal with
three of the five members of the Andean Community of Nations (CAN). The deal,
which should have gone into effect on July 1st 2004, has been
postponed for two or three months because of delays in the revision of the list
of products and the tariff reduction schedule. The deal will see tariffs
phased out on around 80% of goods traded among CAN members Colombia, Ecuador
and Venezuela, and the Mercosur member countries. Bolivia and Peru were the
only two CAN members not included in the accord because they had already
secured bilateral deals with Mercosur.

In 2003, the Mercosur countries
celebrated the XXIVth presidential summit in Asunción, Paraguay, celebrating
its commitment to strengthen the political agenda and expand regional
integration creating a genuine single market by 2006.

Article 2 of the Asunción Treaty
established reciprocity of rights and obligations between the State Parties to
Mercosur. This common market would include the gradual elimination of all
customs duties among its signatories, the creation of a common external tariff,
the adoption of a common trade policy, and the harmonization of economic
policies.

In December 17th, 1994,
the Protocol of Ouro Preto set up the institutional structure of Mercosur,
which started to function in 1995.

The administration and
implementation of Mercosur is entrusted to the Council of the common market and
the Common Market Group (Art. 9 of Asunción Treaty). The Common Market Council
is composed of the member states’ ministers of foreign relations and ministers
of economy (Art. 11). It is the most important and powerful Mercosur
institution and is responsible for its political leadership and for
decision-making to ensure compliance with the objectives and time frames set
for the final establishment of the common market (Art. 10). The Common Market
Group is the executive board of Mercosur. Composed of 16 members representing
the foreign affairs ministries, the economic ministries, and the central banks
of each of the countries, it has established its administrative headquarters in
Montevideo, Uruguay. The Common Market Group branches out into the Trade
Commission of Mercosur which is responsible for advising and enforcing trade
policies, as well as setting directives; the Joint Parliamentary Commission in
representation of the four Parliaments; the Economic and Social Consultation
Forum which has representatives from the different economic and social groups,
and finally the Administrative Secretariat, in Montevideo, which supports the
whole operation and is responsible for advising the other offices of Mercosur.
In addition, the Olivos Protocol established a Permanent Appellate Tribunal to
hear appeals of arbitration awards.[6]

The Brasilia and Olivos Protocols
establish Mercosur’s dispute resolution procedures and institutions regarding
the interpretation, application, or failure to comply with the Asunción Treaty
or any of its Protocols, Council Decisions and Group Resolutions. The Olivos
Protocol permits a dispute to be submitted, either by the complainant or by
mutual agreement of the parties, to the dispute resolution systems of the World
Trade Organization (WTO) or other preferential trade systems that the Mercosur
State Parties may have entered into, as long as the parties to the dispute
jointly agree on a forum.[7] This dispute resolution mechanism
changed Mercosur by making arbitration awards appealable to the Permanent
Appellate Tribunal. The Tribunal will decide the controversy based on the
dispositions of the Treaty of Asunción, on the decisions of the Common Market
Council, the resolutions of the Common Market Group, as well as on the principles
and norms of international law, which are applicable to the matter.[8]
The Tribunal must render its decision within ninety days.[9] The
Mercosur dispute resolution system, even though strengthened by the addition of
the Permanent Appellate Tribunal by the Protocol of Olivos, is still wanting
because it lacks an effective mechanism to protect the rights of individual
entities or persons and is limited to disputes exclusively arising among member
states regarding the application of Mercosur norms.[10] Individuals
may only file their claims with the National Chapter of the Common Market Group
of the State Party where they reside. These claims are considered
automatically concluded, with no further formal steps if the matter is not
settled within fifteen days from initial notice of the claim.[11]

Mercosur represents the third
largest trading bloc in the world after the European Union and NAFTA (the FTAA
is not taken into account because it is not fully active and has not been
completed).[12] Its initial success brought about a
reduction of around 95% of trade barriers among its members. Since the signing
of the Asunción Treaty in 1991 inter-regional trade has almost tripled from 5.1
billion US dollars to 14.38 billion in 1995, while trade with the rest of the
world increased from 67 to 120 billion US dollars (Merco Press, June 15, 2004).
The automobile industry is one of the areas that specially boomed as a
consequence of Mercosur. In the area of foreign direct investment, the member
countries experienced major developments in the late 1990s, because of the
process of privatization in telecommunications and investment in financial
services. As of 2000, Mercosur’s GDP was $900.9 billion in US dollars.[13]
The Protocol of Montevideo signed on December 15th, 1997 attempts
to liberalize the trade in services, setting out a ten-year program especially
in the areas of financial services, insurance and professional services,
satellite communications, and air transportation. Of all the member countries,
Argentina has committed itself to a higher rate of liberalization than the other
Mercosur countries.

Although Mercosur was to a certain extent inspired
by the European Union model, it is not a supranational organization. Rather,
Mercosur is an intergovernmental organization geared towards the creation of a
common market, without discarding a future economic and monetary union, and
even a common currency. Mercosur stands at an integration stage known as a
customs union. A customs union is characterized by a common external tariff
among members of the union as well as elimination of barriers of trade between
member states.[14] Mercosur has managed to eliminate
most of the trade barriers in goods and services and achieved the establishment
of a common external tariff, despite the historic rivalry of the members
involved.[15] It has been questioned, however,
whether Mercosur can accurately be termed a “customs union,” given its
difficulties in maintaining its common external tariff because of the current
economic problems of the countries involved.[16]

Pitou van Dijck and Marianne
Wiesebron, editors of a significant retrospective study on the subject,
determined that “by 1999 Mercosur had become the single largest destination of
foreign direct investment among newly industrializing countries, larger even
than China.”[17] An important reason for its success
is the vast reserves of natural resources and energy provided by its members.
Currently, economic crisis, currency volatility and economic conflicts among
member countries have made investments less attractive and the foreign direct
investment flow has become unpredictable. The central theme appears to be in
finding equilibrium between macroeconomic stability and policy coordination in
order to achieve successful economic integration.

The European Union and Mercosur
are expected to confirm negotiations and free trade agreements by next October.
Despite the desire to create an economic and trade area with significant
political dimensions, there is caution because of fundamental differences with
the European Union over certain sensitive issues, such as the agricultural
subsidies of the industrialized nations. In addition, in July, Mercosur and
China will begin negotiating a free-trade agreement.[18]

Before presenting the sources it
is important to point out that research on Mercosur presents certain
difficulties for the English-speaking researcher because a considerable amount
of sources and information about Mercosur are available in Spanish and
Portuguese and have not been translated to English.

II. Basic Documents

A. Organization and Structure

·Agreement
between Argentina – Brazil – Paraguay – United States of
America – Uruguay concerning a council on trade and investment (done in
Washington, June 19, 1991), 30 I.L.M. 1034 (1991).

·Memorandum of
Understanding between the European Community and Mercosur Concerning the
Multiannual Guidelines for the Implementation of Community Cooperation (Annex
to the Mercosur-European Community Regional Strategy Paper (2002-2006) issued
by the European Commission (External Relations Directorate General) on
September 10, 2002).

III. Selected Materials

A. Books by Chronological Order

Most of the books cover a variety of subjects, the only
exceptions are Sardegna’s work on labor law and Baigún and da Rocha’s study on
economic crimes. On the other hand, there has been a fast development in many
areas, turning older literature less useful. On this basis, a chronological
index seems to be the most appropriate format.

This book specifically deals with Uruguay’s participation
in Mercosur and how it benefited from it. The author takes the position that
Mercosur is not necessarily dependent on the larger countries and that its
success is rather a result of the participation of all its members. He offers
significant information concerning Mercosur’s role in the global arena and its
relations with other common markets. It is important to point out in this
regard that Uruguay and Paraguay refused any differential treatment with
respect to partners possessing larger economies.

This volume contains information about the market trends
toward globalization; the origins of Mercosur, its organization, its monetary
and fiscal policies; entrepreneurial relationships, including joint ventures
and franchising; and the relations of Mercosur with the United States, the
European Union, NAFTA, and GATT.

This book contains analyses of the following topics:
relations with the European Union, joint ventures, environmental problems,
administrative organs, automotive industry, agriculture, Brazil and the
European integration, human rights, international commercial contracts, and
transborder problems.

After
analyzing the socio-cultural dimension of Mercosur, including the migration of
workers. This book covers the labor and social security legislation and their
proposed harmonization. It also compares the Mercosur labor relations with
those of NAFTA and the European Union.

This second edition considerably expands a series of
papers and presentations made by the author on the basic legal, social, and
economic issues involving GATT, Mercosur and NAFTA. Its second edition
includes the WTO and, in what concerns Mercosur, its legal structure and
functional organization; common external tariff; rules of origin; partnership
with the European Union; and agriculture and financial services.

This book deals with Mercosur within a comprehensive study
of a number of regional integration processes in America, Europe, and Asia. It
has a very interesting historical section regarding American integration. It
also includes a rich documentary supplement.

·Victor
S. Antunes Correia, Estudos da Integração:
Análise Jurídico-Política do Mercosul (11th Volume). Brasília: Associação Brasileira de
Estudos da Integração, 1997. This book analyzes Mercosur from a legal and
political perspective discussing the history of the member states. The book
addresses socio-political, economic, legal, and sociological issues.

The author discusses and compares the different methods
through which NAFTA, Mercosur, and the European Union resolve controversies
within their respective organizations.

·Masaaki
Kotabe, Mercosur and Beyond: The Imminent
Emergence of the South American Markets. Austin: Center for International
Business Education and Research, 1997. This book discusses various economic
aspects of Mercosur as an emerging market in South America. Taking into
account the broader South American context, it focuses on the following issues:
Brazil as the largest economy in Latin America; Chile as an emerging market in
Latin America; and the integration of Venezuelan and Colombian markets.

This book consists of a compilation of treaties and
protocols related to Mercosur until 1998. It includes the founding treaties;
institutional organization; judicial cooperation; consumer rights; investments;
trade; movement of people across borders; education; and agreements between
Mercosur and other regional organizations and states.

This book analyzes Mercosur as a force within the global
economy. It discusses its origins; its role as an international organization
and its relations with others; and its legal and administrative structure. It
concludes with a section listing a number of Mercosur treaties and protocols.

This book deals with various criminal law issues related
to the integration of the South American markets. The various contributors
cover the following chapters: tax frauds; custom violations; criminal
protections of free competition; and criminal law protection of intellectual
property.

The
book contains a series of studies on liberalization of commerce and integration
processes in general. It stresses the legal aspects but it also takes into
account economic sociology and political science. It includes chapters on the
social dimension of integration processes; the relationship between Mercosur
and a possible future with NAFTA and the FTAA, as well as with the European
Union; political and social problems, social movements, and
transnationalization of trade union practices.

After
an interesting introductory chapter on the significance of international
commerce and its relations with economic development, this book addresses
subjects such as imports, and exports, including the use of land
transportation, customs and tariffs, and export incentives. Each chapter
provides a comparison between the customs codes of the member countries as well
as the applicable provisions to each of the subjects dealt with by the author.

This book is a compilation produced by the Brazilian
Congress and Ministry of Foreign Affairs of all the basic Mercosur documents,
as well as those dealing with conflict resolution, certificates of origin,
competition, customs, foreign relations, judicial cooperation, education, and
technical cooperation.

This work is the product of cooperation of Spanish and
Argentine professors. It contains studies on the following subjects: genesis
and structure of the Treaty of Asunción; legal principles of integration in
Latin America; procedures of conflict resolution; relations between the
European Union and Mercosur; Mercosur and the law of the sea and the
integration of the fishery industry; Mercosur and transborder cooperation;
Mercosur and the environment; and the harmonization of Mercosur and the World
Trade Organization.

This is an exceptionally comprehensive compilation of
documents related to Mercosur. It covers its structural aspects, including all
the treaties and protocols; investment and competition policies; capital
markets; agreements of mutual assistance in civil procedure; agreements of
cooperation in the areas of criminal law, extradition, and illegal traffic of
children; transportation; trade in services; education; consumer rights;
insurance; labor law; postal agreements; trademarks; social security;
environment; agreements between Mercosur and other regional organizations and
states; and constitutional law of the Mercosur countries.

·Pitou van
Dijck and Marianne Weisebron, eds., Ten
Years of Mercosur. Amsterdam: Centre for Latin American Research and
Documentation, 2002.

The book is elementary in its analysis of Mercosur but
gives a good description as to its history and the current obstacles it is
facing; analyzes the challenge of integrating the Mercosur with the FTAA; and
discusses the strengths, as well as the weaknesses of Mercosur and provides an
analysis of how it can succeed in a region with very different social and
economic policies. Furthermore, the literature includes a number of articles
comparing and contrasting Mercosur with other customs unions and competitors in
commerce.

·Beyond Borders: The New Regionalism in Latin
America.
Washington, DC: John Hopkins University Press, 2002.

This book contains a global survey of regional integration
in Latin America. Its first chapter, which is a summary and an agenda, gives a
comprehensive picture of the various areas of regional integration. In the
following chapters the book analyses the various aspects of regional
integration; economic and trade dimensions; market access and trade
liberalization; regional institutions and dispute settlement mechanisms;
financial integrations; regional infrastructure and the significance of
improved transportation; telecommunications and energy services; macroeconomic
coordination among the member countries of each trade bloc; trade agreements
and exchange rate disagreements; currency unions; effects of regional
integration and foreign direct investment; regional integration matters for
productivity; and regional integration and wage inequality.

This
book consists of a number of articles about several aspects of Mercosur. The
core objective of the book is to understand how the forces of globalization are
impacting upon the prospects of sustainable development in Latin America. It
includes issues such as privatization and neoliberalism; a socio-economic
profile of Latin America; Mercosur’s options for the future; Latin American
integration; the possible consequences of privatization in Chile; the impact of
regional integration in Brazil; and issues of mediation and social conflict.
The book also includes tables offering statistical information on a number of issues.

This
important contribution on Mercosur’s future eexplores the possibility of a
monetary union among Mercosur’s member states. Some of these studies focus on
the EMU experience and whether its model of monetary union is appropriate and
feasible for Mercosur. Other articles include concrete proposals of a monetary
union in the long term, issues concerning the macroeconomy of Mercosur, and
problems associated with monetary integration in economies that are
structurally different.

·Ana
Margheritis, ed., Latin American
Democracies in the New Global Economy. Miami: North South Center Press,
2003.

Although
this book deals with economic integration in Latin America in general, it
contains an interesting chapter by Roberto Bouzas, “Economic Integration in the
Southern Cone.” After providing a summary account of the performance of
Mercosur since 1991, it offers a review of the factors that help to account for
performance. It also chalenges four fallacies that pervade in the present
policy debate on the future of Mercosur: a) that Mercosur is an imperfect
customs union; b) that Mercosur cannot move forward due to national
constitutional impediments; c) the paralysis of Mercosur is the result of a
macroeconomic crisis; and d) that the “trading” Mercosur should be replaced by
a “political” Mercosur. The fourth and final section of this article assesses
the prospects of Mercosur in light of Argentina and Brazil’s new
administrations.

·Helio
Jaguaribe and Álvaro de Vasconcelos, eds., The
European Union, Mercosul and the New World Order. London: Frank Cass,
2003.

This
book provides a compilation of articles about Mercosur as a contender in the
global marketplace. These articles cover the European Unions relations with
Mercosur; the effects of multilateralism and regionalism from a European
perspective; the future prospects of Mercosur; Mercosur’s international
political role; Argentina and Mercosur; a study of Mercosur’s history and
future projections; and Brazil’s current foreign policy within a globalizing
world.

This
book deals with the relationship between trade and the environment within the
Mercosur context; the role of the environment in the Asunción Treaty and in the
Ouro Preto Protocol; political agreements reached by the Mercosur countries in
the environmental area; and a comparative analysis of the role of the
environment and sustainable development within the European Union and NAFTA.
The last chapter contains a study of the various strategically alliances of
Mercosur in the area of sustainable development. It also includes an annex
with the various environmental norms adopted by the member states

This is an ambitious book that covers not only the legal
norms, but also the historical, sociological, political, and economical
frameworks of integration. It mainly addresses Mercosur and the European
Union. Many of the aspects of the law of integration are treated at a
jurisprudential level. In this regard, this book deals with the general
notions of legal integration and integration systems and their jurisprudential
basis; the sources and the subjects of coordination systems; and international
organizations as instruments of integration.

D. Lexis-Nexis and
Westlaw Database

In the library section International Materials, under South
America: News and Business Information, search by database name South American Business Information
with the identifier SOAMBUS. This
includes more recent coverage starting on June 1999.

[16] Mario Esteban Carranza, South American Free Trade Area or Free Trade
Area of the Americas? Open Regionalism and the Future of Regional Economic
Integration in South America, cited by Chrsitopher M. Bruner, Hemispheric Intehration and the Politics of
Regionalism: The Free Trade Area of the Americas (FTAA) in 33 U. Miami Inter-Am. L. Rev. 28, at n. 126
(2004).

[17] Pitou van Dijck and Marianne
Weisebron, Ten Years of Mercosur 10
(Amsterdam: Centre for Latin American Research and Documentation 2002).